236 A.3d 414
D.C.2020Background
- Police stopped Darnell Kornegay (age 22) on Aug. 24, 2017; officers found three sandwich bags of marijuana (total ≈ 1.73 ounces), $769 cash, additional empty bags, and a digital scale with residue.
- Kornegay was charged with possession with intent to distribute (PWID) under D.C. Code § 48-904.01(a)(1).
- At a bench trial the court rejected Kornegay’s testimony that the marijuana was for personal use/gifting and convicted him of PWID; he appealed.
- In 2015 the D.C. Code was amended (via initiative) to make it lawful for persons 21+ to possess up to 2 ounces of marijuana and to exclude such amounts from the statutory definition of a “controlled substance,” subject to exceptions for marijuana that is “sold, offered for sale, or made available for sale.”
- The principal legal question became whether the amendments removed criminal liability for possession of ≤2 ounces even when the possessor intended to distribute, and whether Kornegay’s conduct amounted to “making available for sale.”
- The court concluded possession of 1.73 ounces by a 21+ adult was lawful absent evidence of conduct constituting making the marijuana available for sale; it reversed and remanded to vacate Kornegay’s conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether D.C.’s 2015 amendments render possession of ≤2 oz marijuana lawful even if possessor intends to distribute | Kornegay: Possession ≤2 oz is expressly lawful for persons 21+, so PWID cannot be sustained regardless of intent | Government: Law only shields possession for "personal use"; intent to distribute removes the protection | Held: The statute’s plain language makes possession ≤2 oz lawful for 21+ regardless of intent, absent conduct that makes it available for sale |
| Whether mere intent or typical indicia (packaging, scale, cash) suffice to show marijuana was "made available for sale" | Kornegay: No act beyond possession was shown; packaging/scale/cash alone do not equal making available for sale | Government: Intent to sell or packaging and distribution paraphernalia indicate making available for sale | Held: "Make available for sale" requires some action beyond mere thought or generic packaging; the government presented no such evidence here |
| Whether the evidence of intent to distribute was legally sufficient | Kornegay: Insufficient circumstantial evidence; his gift/personal-use explanation plausible | Government: Circumstantial evidence (packaging, scale, cash, expert testimony) supports intent | Held: Court did not reach merits of sufficiency because statutory protection resolved the case in Kornegay’s favor |
| Applicability of the statutory exclusion from the definition of "controlled substance" (§ 48-904.01(a)(1A)) | Kornegay: Even if not "personal possession," the exclusion and the (a)(1) analysis protect him | Government: If not for personal use, the marijuana remains a controlled substance | Held: Even assuming arguendo it was not in "personal possession," that would not show Kornegay had made it available for sale; (a)(1A) does not alter the conclusion reached under (a)(1) |
Key Cases Cited
- Johnson v. United States, 40 A.3d 1 (D.C. 2012) (defining elements of possession)
- Abdulshakur v. District of Columbia, 589 A.2d 1258 (D.C. 1991) (intent ordinarily proved circumstantially)
- Tippett v. Daly, 10 A.3d 1123 (D.C. 2010) (statutory words construed in ordinary sense)
- Hood v. United States, 28 A.3d 553 (D.C. 2011) (holistic statutory construction)
- Lopez-Ramirez v. United States, 171 A.3d 169 (D.C. 2017) (ascertain and give effect to legislature's intent)
- Carrell v. United States, 165 A.3d 314 (D.C. 2017) (bench-trial preservation of sufficiency challenges)
- Zukerberg v. Bd. of Elections & Ethics, 97 A.3d 1064 (D.C. 2014) (ballot summary can inform voter intent)